Putting lawyers back on the law’s side, post White House torture advice

Benjamin Wachs

Thursday

May 28, 2009 at 12:01 AMMay 28, 2009 at 3:08 AM

In America, the law has become a way of justifying behavior, rather than shaping it.

I don’t get it.

As America debates whether to investigate and prosecute the lawyers who told the White House that it is legal to authorize torture, some people warn that this will set a bad precedent.

Prosecution, they say, will discourage future White House lawyers from giving the White House candid advice.

That’s the part I don’t get. Because, honestly, I’m OK with the White House’s lawyers not suggesting it’s acceptable to torture.

I’m good with that.

If, 20 years down the line, a White House lawyer is considering authorizing torture, and then thinks, “I’d better not; I could get in trouble,” I’d say the system has worked pretty well.

I’ll go a step further. I would like the president’s lawyers to be cautious about giving the president really, really terrible legal advice of any kind.

Shred the documents? Lie to the public? Usurp congressional authority? I’m comfortable with the president’s lawyers thinking, “we’ll get in big trouble if we tell him he can do that.” That’s a win.

Political lawyers are at their worst when they act as enablers. Discouraging it is the best precedent we can set.

On the other hand, why should the president be the only one not getting really, really terrible legal advice? White House lawyers didn’t do anything Enron’s lawyers didn’t do, anything Blackwater’s lawyers didn’t do, or anything AIG’s lawyers didn’t do.

Imagine how much misery would have been prevented by just a few lawyers saying, “No, you can’t do that! It’s against the law!”

Alas, in America “legality” has turned into “legalism” — and the law has become a way of justifying behavior, rather than shaping it.

This is perhaps inevitable in a country where (1) shame is no longer a deterrent against behavior, and (2) the client pays his own lawyers. Under those circumstances, a powerful person will always be able to find a top-notch legal team willing to justify the unjustifiable.

However good our laws, if our lawyers aren’t on the law’s side, the powerful will always get legal sanction.

Attorneys take a licensing exam, take an oath, and call themselves “officers of the court.” We need to take that seriously again. Standards must be tightened. People must surely be free to choose their own lawyers, but the court — not the client — must set the standards of practice.
If the bar cannot police itself, it can be given better tools. Here’s one way this could work:

Money can no longer be an incentive to bend the law. Attorneys, as officers of the court, should be forbidden from taking payment from their clients. They can charge what they like, but all payments will go to the state bar association, which will directly pay attorneys a standard fee for hours worked. Clients will no longer be able to ease lawyers' consciences by throwing money at them, and attorneys will get the same incentives for representing the little guy as the big sharks.

Next, there must be a disincentive to bend the law. This requires a stricter review process wherein each bar association will have the legal documents of its members reviewed by the randomly selected bar association of another state. This audit, complete with penalties ranging from the civil to the criminal, will be designed to catch the kind of legal advice that uses the law to break it. Attorney-client privilege would remain protected; there would just be auditing attorneys in the mix, who also would be bound to keep secrets secret.

There would still be plenty of room for unconventional legal arguments. The intent isn’t to freeze the law, only to keep the people best acquainted with it from also being the most dangerous to it. To those who say this is unconstitutional, I reply that attorneys already take on moral obligations to practice law. It’s just that we no longer take them seriously.

Lawyers must take moral obligations seriously. It’s the only way they’ll ever say “no” to power.
Would such changes fundamentally reshape America’s basic legal system? Yeah. But when lawyers are assassins paid to kill the spirit of the law, the weapon must be taken from their hands.

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